§712-1214 Promoting pornography. (1) A person commits the offense of promoting pornography if, knowing its content and character, the person:
(a) Disseminates for monetary consideration any pornographic material;
(b) Produces, presents, or directs pornographic performances for monetary consideration; or
(c) Participates for monetary consideration in that portion of a performance which makes it pornographic.
(2) Promoting pornography is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
Revision Note
In subsection (1)(a), "or" deleted pursuant to §23G-15.
COMMENTARY ON §712-1214
Section 712-1214 imposes a general penalty upon the commercial dissemination of pornography, regardless of the form of the "material" [§712-1210] or "performance" [§712-1210].
The definition of "pornographic" [§712-1210] is derived from a series of United States Supreme Court cases,[1] other proposed or enacted codifications,[2] and the Model Penal Code.[3] The usual reference with respect to "predominant appeal" test and the "limits of candor" test is to the "ordinary adult"; however, the definition is flexible to the extent that, on the first test, where the material or performance in question is addressed to a particular, clearly defined audience, such as homosexuals and sexual sadists, the reference is to the "special interest group."[4] Special problems relating to minors are handled separately in §712-1215.
References in United States Supreme Court opinions to "contemporary community standards" have proven troublesome for the Court and for lower courts that have tried to follow its decisions. In Roth the Court applied "contemporary community standards" to the predominant appeal test.[5] In Memoirs, the Court applied "contemporary community standards" to the limits of candor test,[6] but not to the predominant appeal test.[7] In Ginzburg the Court applied the concept of community standards in determining whether the material had social value for the audience (general public) to which it was directed.[8] It should, however, be noted that the Court in Ginzburg was sharply divided and that in most decisions the applications of "contemporary community standards" has been only to the predominant appeal and limits of candor tests.
The most serious problem in the application of "contemporary community standards" is the uncertain nature and size of the "community" referred to. On this too, the Court is divided. Mr. Justice Harlan has said:
There must first be decided the relevant "community" in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U.S. 380.[9]
This "national community" standard has been echoed by Mr. Justice Brennan:
We do not see how any "local" definition of the "community" could properly be employed in delineating the area of expression that is protected by the Federal Constitution. ...It is true that Manual Enterprises dealt with the federal statute banning obscenity from the mails. But the mails are not the only means by which works of expression cross local community lines in this country. It can hardly be assumed that all the patrons of a particular library, bookstand, or motion picture theater are residents of the smallest local "community" that can be drawn around that establishment. Furthermore, to sustain the suppression of a particular book or film in one locality would deter its dissemination in other localities where it might be held not obscene, since sellers and exhibitors would be reluctant to risk criminal conviction in testing the variation between the two places....
It is true that local communities throughout the land are in fact diverse, and that in cases such as this one the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing the criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court's duty of determining whether a particular conviction worked a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby "the constitutional limits of free expression in the Nation would vary with state lines," Pennekamp v. Florida, supra, 328 U.S., at 335; we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.[10]
On the other hand, former Chief Justice Warren, dissenting in Jacobellis, thought the standard should be the "local" community:
It is my belief that when the Court said in Roth that obscenity is to be defined by reference to "community standards," it meant community standards not a national standard, as is sometimes argued. I believe that there is no provable "national standard," and perhaps there should be none. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a "community" approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals.[11]
The disagreement within the Court is all the more difficult to understand because the standard provided in Roth, Manual Enterprises, Jacobellis, Memoirs, Mishkin, and other cases, was derived from the Model Penal Code,[12] which clearly intended that a national standard be applied.[13]
In the wake of the Supreme Court's failure to provide a clear rule, the state and lower federal courts have split three ways: applying either a "local,"[14] "state,"[15] or "national"[16] standard.
It appears to us that there is little to be gained by using the phrase "contemporary community standards"--which the Code deliberately does not employ. The reference will have to be made to contemporary standards of ordinary adults--but the use of the word "community" in this context has posed more problems than it has solved. It seems that the reference is at least statewide and probably national--but to use the word "community" at either level adds little or nothing. In any event, the Code's definition of "pornographic" will not prejudice further case development on this issue.
The Code limits the offense of promoting pornography to activity carried on for monetary consideration. It is commercial exploitation and not private tastes that are the gravamen of the offense. As the drafters of the Michigan proposed revision have pointed out:
... [T]he emphasis in this area should be on commercial distribution of pornographic material. We should not open up to prosecution, police investigation, search, etc. every person who in the privacy of his home exhibits pornographic materials to a few friends [cf. Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed. 2d 521 (1966)].[17]
Moreover, making criminal private possession of materials, and possibly private expressions through performances, albeit pornographic in nature, appears to be unconstitutional.[18]
It should be pointed out that the definition of the offense provides that the accused must act knowingly with respect to the pornographic context and character of the material the accused disseminates or the performance the accused presents, directs, or in which the accused participates. This meets the constitutionally imposed requirement of mens rea in this type of case[19] and is in accord with the general principles set forth in chapter 702 of this Code.
The previous Hawaii law relating to pornographic and other condemned publications was set forth in HRS §727-8. No extended discussion is required to demonstrate that this section of the Code is to be preferred to previous law. In line with the Code's limitation to commercial exploitation, the available penalty has been increased.20
Law Journals and Reviews
State v. Kam: The Constitutional Status of Obscenity in Hawaii. 11 UH L. Rev. 253 (1989).
The Lum Court and the First Amendment. 14 UH L. Rev. 395 (1992).
Privacy Outside of the Penumbra: A Discussion of Hawai‘i's Right to Privacy After State v. Mallan. 21 UH L. Rev. 273 (1999).
Case Notes
Subsection (1)(a) is not unconstitutional for overbreadth or void for vagueness. 58 H. 440, 573 P.2d 945 (1977).
Jury must find that community standard exists and defendant violated it. 68 H. 631, 726 P.2d 263 (1986).
Section unconstitutional as applied to sale of pornographic materials to person intending to use items in privacy of own home, but was not unconstitutionally vague or overbroad. 69 H. 483, 748 P.2d 372 (1988).
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§712-1214 Commentary:
1. Roth v. United States, 354 U.S. 476 (1957); Manual Enterprises v. Day, 370 U.S. 478 (1962); Jacobellis v. Ohio, 378 U.S. 184 (1964); A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413 (1966); Mishkin v. New York, 383 U.S. 502 (1966); Ginzburg v. United States, 383 U.S. 463 (1966); and Redrup v. New York, 386 U.S. 767 (1967). Insofar as Ginzburg can be read to render pornographic materials which would not otherwise be so but for defendant's salesmanship ("pandering"), the Code chooses not to incorporate this aspect into the standard definition provided.
2. Prop. Mich. Rev. Cr. Code §6301(f) and N.Y.R.P.L. §235.00.
3. M.P.C. §251.4.
4. Cf. Mishkin v. New York, supra.
5. Roth v. United States, supra at 489: "...whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
6. Memoirs v. Massachusetts, supra at 418: "...the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters."
7. Id.
8. Ginzburg v. United States, supra at 472: "The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral environment [members of medical associations]. Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on its supposed therapeutic or educational value; rather, they deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed."
9. Manual Enterprises v. Day, supra at 488.
10. Jacobellis v. Ohio, supra at 193-195.
11. Id. at 200-201.
12. See Manual Enterprises v. Day, supra at 485 and Jacobellis v. Ohio, supra at 191.
13. M.P.C. §251.4(4): "In any prosecution under this Section evidence shall be admissible to show...the degree of public acceptance of the material in the United States."
14. City of Newark v. Humphres, 94 N.J. Super. 395, 228 A.2d 550 (1967); Nessinoff v. Harper, 212 So. 2d 666 (Fla. Dist. Ct. App. 1968).
15. In re Giannini, 69 Cal. 2d 563, 446 P.2d 535, 72 Cal. Rptr. 655 (1968), cert. denied, sub nom. California v. Giannini, 395 U.S. 910 (1969); McCanley v. Tropic of Cancer, 20 Wisc. 2d 134, 121 N.W. 2d 545 (1963).
16. Hudson v. State, 234 A.2d 903 (D.C. Mun. Ct. App. 1967); State v. Lewitt, 3 Conn. Cir. Ct. 605, 222 A.2d 579 (1966); State v. Smith, 422 S.W.2d 50 (Mo. 1967), cert. denied, 393 U.S. 895 (1968).
17. Prop. Mich. Rev. Cr. Code, comments at 483.
18. Stanley v. Georgia, 394 U.S. 557 (1969).
19. Smith v. California, 361 U.S. 147 (1959).
20. Cf. H.R.S. §727-10.